The legality of the ASADA – AFL investigation  a response to Harcourt, Marclay and Clothier .

*Submitted to the British Journal of Sports Medicine June 2014

The recent article by Harcourt, Marclay and Clothier[1] is to put it in one word, problematic.

Firstly, let’s take the article’s opening attempt to position itself within the paradigm of the 2015 World Anti Doping Code (WADC). Not unlike the Australian Sports Anti Doping Agency (ASADA) – Australian Football League (AFL) joint investigation itself there is something sneaky about this positioning which immediately deflects our attention from the question of the joint investigation’s consistency with existing anti doping law, and not just the WADC, but importantly the Australian legislation that governs the powers and activities of ASADA. As anybody concerned with matters of legality knows too well past acts are not justified by prospective laws, but by the laws that are in place at the time those acts occur. Herein lies the problem for the touting and evaluation of the investigation’s success.

Before examining the joint investigation in a little more detail it is useful to recall two things. The first concerns anti doping jurisprudence generally as it has been developed by the Court of Arbitration for Sport (CAS). As far back as 1995 in the case of USA Shooting & Q./ International Shooting Union, CAS stated that “The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule appliers must begin by being strict with themselves.”[2] Put simply anti doping and sporting organisations cannot do ‘whatever it takes’ to secure an anti doping conviction – they like all other organisations and persons are bound to act within the law.

The second matter concerns the Australian Government’s intention in establishing ASADA. The legislative reforms that saw the formation of ASADA in the mid 2000’s were made against the backdrop of the 2004 Anderson Enquiry into allegations of doping within the Australian Institute of Sport’s Track cycling program and the manner in which that sport’s governing body had handled the matter. At the conclusion of the Second Stage Report, Anderson made the following recommendation: “I am however strongly of the view that there should be a body which is quite independent of AIS and of the Australian Sports Commission and of the sporting bodies themselves with the power and duty to investigate suspected infractions such as substance abuse and to carry the prosecution of persons against whom evidence is obtained. There are a number of reasons why these functions should be performed by an arms length body separately from and independently of the sporting bodies …”.[3] A subsequent discussion paper released by the Department of Communications, Information Technology and the Arts in late 2004 also acknowledged "the need for an independent and transparent process to investigate doping in sport". The deficiencies of the "sport runs sport" model were conceded. It was these considerations that ultimately led to the reforms resulting in the creation of ASADA.[4]

Anderson’s recommendations were seized upon by Parliament when it passed the Australian Sports Anti-Doping Authority Bill 2005. In the course of the Second Reading Speech for Minister Kevin Andrews stated: “The establishment of ASADA will mean that sports, athletes and the public can have complete confidence that doping allegations will be investigated and pursued in an independent, robust and transparent way.”[5] Minister Andrews views were mirrored by opposition members of Parliament, including Senator Kate Lundy, who was later Minister for Sport at the time of the ASADA –AFL joint investigation. In her Second Reading Speech Lundy in fact derided the “so-called independent investigation of the incident” by Cycling Australia[6].

Moving from the macro to the micro level of analysis an examination of the ASADA Act and Regulations make it clear that the concept of a joint investigation is alien to the Australian anti doping context. Not only is it an alien concept, it is highly likely that if any court was to examine the arrangements under which the investigation took place they would find it was unlawful and invalid.

To understand this we need to start with what the ASADA Act terms National Anti Doping (NAD) Scheme Personal Information. By virtue of Australian law NAD Scheme Personal Information is confidential information and its unauthorised disclosure is a criminal offence that carries a penalty of two years imprisonment.[7] Australian law requires that anti doping information or opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from that information or opinion, is legally confidential information. What is clear is that the statutory regime established by the Commonwealth Government is a regime whereby anti-doping cases are investigated, prosecuted and heard in private. Neither ASADA nor third parties to whom disclosure is authorised by the ASADA Act prior to that individual being found to have committed a violation, after a hearing or by their own ‘guilty plea’, can publicly divulge NAD Scheme Personal Information.

To grasp the purported legal basis of the joint investigation we need to understand that the ASADA Act and Regulations do make it possible to share information in certain circumstances, but these circumstances are clearly set out in the Schedule to the ASADA Regulations known as the NAD Scheme. Section 13(f) of the ASADA Act authorises the CEO of ASADA to investigate possible violations of the anti-doping rules.[8] Section 13(g) of the Act authorises the CEO to disclose information for the purposes of, or in connection with, the administration of the NAD Scheme. The only possible authorised power of disclosure that the CEO possesses prior to ASADA’s Anti Doping Rule Violation Panel (ADRVP) making a finding that there is a possible anti doping rule violation[9] is the power contained in Clause 4.21 of the NAD Scheme.

Disclosure by the CEO under Clause 4.21 cannot conceivably include the notion of a joint investigation. By conducting a joint investigation whereby a sporting organisation is included in, amongst other things the process of interviewing athletes or support persons, the CEO of ASADA has both misconstrued the nature of their power and failed to exercise the important discretion given to them by Parliament to ensure that anti doping investigations are conducted in an independent and credible manner. To quote the Minister’s Second Reading Speech such an investigation would not be “robust and transparent”. Or in the words of Senator Lundy, who as Minister oversaw the operation of the joint investigation it would constitute a “so-called independent investigation”. Such an investigation would be flawed because the CEO of ASADA had failed to do what the High Court of Australia describes as a jurisdictional error. They have failed to ask themselves the correct questions as required by the legislation – here the CEO of ASADA has asked herself the wrong question.[10] A jurisdictional error leads to the complete process being found to be invalid and unlawful. At no time prior to the disclosures that constitute the joint investigation did the CEO exercise the necessary discretion in order to be properly satisfied in law that the disclosures were for the purposes required by the NAD Scheme.

In their article Harcourt et al state that the investigation took seven months. This not only incorrectly suggests that the investigation had been completed but it also draws out the point (possibly inadvertently) that for the purposes of the AFL the disclosure by the CEO in the form of the so called Interim Report was not for the purposes of the NAD Scheme. What the authors appear to be stating is that the AFL’s involvement in the investigation had been completed when they acted upon the information for a purpose other than the NAD Scheme in August 2013. At the time of writing the investigation by ASADA is ongoing. Contrary to the claim by Harcourt et al, neither that ongoing investigation, nor the joint investigation has “uncovered the use of peptides used to enhance athlete performance". To date no such assertion has been made by ASADA and furthermore we are a long way from any such possible assertion being proven. This claim in the Results section of their article which is also inconsistent with the body of the article that states, "In the AFL investigation, due to the lack of individual athlete and team documentation, the precise nature and doses of substances that were given to each athlete were uncertain or unknown". We are entering the world of Kafka were the unproven must be disproved – as any scientist or jurist knows one cannot prove a negative. Nevertheless, they then went on to assert, "the peptides use in the team was overseen by team support staff". To date no such evidence has been advanced, nor has any such fact or facts been definitively established before any hearing or disciplinary body; nor have they been asserted as possible by ASADA’s ADRVP, the Panel which has the power under the ASADA Act to make such assertions of possible anti doping rule violations.

The authors also refer to the club involved accepting sanctions. They omit to state that no evidence was offered and nothing was proven at the so-called AFL Commission ‘hearing’ in August 2013. The authors also omit the fact that those sanctions were accepted following no hearing or argument over the matter and that the club faced threats by the AFL including that the club would lose its licence if it did not accept the sanctions. But for our purposes what is important was that the club was not sanctioned for anti doping purposes. The accepted or coerced sanction was for the wide and nebulous allegation of bringing the game into disrepute. Furthermore, all of the information upon which the charges were drawn was the fruit of the joint investigation and the interim report. From this perspective the interim report itself may well be equally legally flawed as it appears to have been prepared and provided to the AFL for an improper purpose – itself grounds for invalidity in a Court.

Recently one AFL Commissioner, Mr Bill Kelty, has further strengthened the fact that the disclosures to the AFL were not for the purposes of the administration of the NAD Scheme. In an interview on ABC Radio and reported in The Age Newspaper Mr Kelty, a former Union powerbroker, stated that at the time of the Australian Crime Commission Report referred to by Harcourt et al, he “had a concern that the AFL had subcontracted out the responsibility and that we couldn’t clearly say to the parents or to the players that this drug was authorised … and I thought we should bring it back in … to reclaim the ground, revert back to what it was.”

As Tim Lane subsequently wrote in The Age newspaper “‘What it was’ is presumably
the more familiar landscape on which the AFL runs its own race. For the fact
is, Kelty’s expression "subcontracting the work out" described the
modern-day requirement of responsible sports administrations to hand over
doping investigations such as the Essendon case to an authorised authority.”[11]
Rather than being at the leading edge of implementing the WADC, as the
authors appear to suggest, the AFL has had in fact a complicated and confused
relationship with WADA since that body’s inception.[12]
The AFL’s recreational drug policy is but one example of this complicated and
confused relationship with the WADC. The view that Kelty’s admission supports
the contention that the main game was for the AFL to regain control of anti
doping from ASADA is further supported by the reports that Clothier himself
wishes to see the AFL undertake drug testing outside of the ASADA system.[13]

What the ASADA Act sets out is a regime for anti doping investigations to be conducted independently of sporting organisations – that is ‘What it is’. The current legal situation is acknowledged by the AFL in its own Anti Doping Code. In Clause 4 the AFL recognises ASADA’s charter to conduct its own investigations. That Clause states that ASADA will (or better may) provide regular reports to the AFL on ASADA’s conduct of its anti doping functions subject to ASADA’s enabling legislation and that ASADA will perform and conduct anti doping functions and powers in accordance with the AFL Anti Doping Code in so far as it does not conflict with ASADA Act and the NAD Scheme.

In flouting these provisions and those of the ASADA Act both the AFL and ASADA have conducted an investigation that manifests all the problems identified by the Anderson Enquiry – investigation skills, conflicts of interest and capacity. Furthermore, ASADA have acted in a manner that is clearly contrary to the manner in which Parliament intended they would act. The article by Harcourt et al above all is intellectually dishonest. It seeks to have the investigation judged by a version of the WADC that is not yet in force. But moreover, it ignores the manner in which that Code is implemented in Australia by Parliament. That is it ignores the existing lack of legal basis for the joint investigation. It is intellectually dishonest in that it implies that the joint investigation model improves the forensic capabilities of the investigators, and that such improvement cannot be achieved without such a joint approach. Clearly it can and a proper interpretation and implementation of the ASADA Act allows for it. All that was required in the this case was for ASADA to identify the information that it was not able to obtain itself and request that the AFL obtain that information using the powers available to it under the AFL Regulations and Player Rules. Just because a party is able to furnish information does not mean that the party should assume the role of joint investigator. The statement that "The AFL-ASADA investigation demonstrated the need for, and efficiency of, a partnership between sporting bodies and anti doping organisations" is without both factual and legal foundation.

Footnotes

[1] A forensic perspective of the AFL investigation into peptides: an antidoping [sic] investigation case study, British Journal of Sports Medicine, May 2014, Volume 48, Issue 10 doi:10.1136/bjsports-2014-093531
[2] USA Shooting has recently been once again applied by CAS in CAS 2014/A/3487 Veronica Campbell-Brown v. JAAA & IAAF.
[3] See Bills Digest no. 80 2005 06 – Australian Sports Anti Doping Authority Bill 2005 http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0506/06bd080#B
[4] See Bills Digest no. 80 2005 06 – Australian Sports Anti Doping Authority Bill 2005 http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0506/06bd080#B
[5] Kevin Andrews, MP, Minister for Employment and Workplace Relations and Minister assisting the Prime Minister for the Public Service, Second reading speech: The Australian Sports Anti Doping Authority Bill 2005 , House of Representatives, Debates, 7 December 2005.
[6] Senator Kate Lundy, Second reading speech: The Australian Sports Anti Doping Authority Bill 2005 , The Senate, Debates, 2 March 2006.
[7] Section 71 ASADA Act. One must ask the question then what have we been reading in the newspapers for the last 15 months and what was its source?
[8] Clause 3.27 of the NAD Scheme authorises ASADA (or as it now stands following the August 2013 amendments, the CEO of ASADA) to investigate possible anti doping rule violations that may have been committed by athletes or support persons.
[9] At the time of writing and after some fifteen months of investigation the CEO still has not referred the matter to the ADRVP under clause 4.07 of the NAD Scheme.
[10] Kirk v Industrial Relations Commission (2010) 239 CLR 531 at [67].
[11] Tim Lane, Latest twist Highlights AFL’s failures http://www.theage.com.au/afl/latest-twist-highlights-afl-failures-20140322-hvljg.html#ixzz33d35P0Zi and Martin Hardie, All Under the Family’s Control http://communities.deakin.edu.au/deakin-speaking/node/614
[12] ABC Radio National PM, AFL agrees to sign up to drug code http://www.abc.net.au/pm/content/2005/s1417859.htm
[13] See Martin Hardie, ASADA, the AFL and WADA – The Main Game http://blogs.crikey.com.au/northern/2014/03/20/asada-the-afl-and-wada-the-main-game/ and Samantha Lane AFL to use ASADA alternative in expansion of drug testing program
http://www.theage.com.au/afl/afl-news/afl-to-use-asada-alternative-in-expansion-of-drug-testing-program-20140214-32rl8.html#ixzz33dCQCGLL